Filed 8/2 6 /21 Nassi r v. Feng CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

FARZIN NASSIR, Individually and as Trustee, etc.,

Plaintiff and Responde nt,

v.

XIAOGANG FENG et al.,

Defendant s and Appellant s

. B 30 5184

(Los Angeles County Super. Ct. No. BC 597173 )

APPEAL from a judgment of the Superior Court of
Los Angeles County, Richard J. Burdge

, Jr., Judge. Affirm ed

. Early Sullivan Wright Gizer & McRae, Eric P. Early, Stephen Y. Ma and Sophia S. Lau for Defendant s and Appellant s

. Ecoff Campain & Tilles, Lawrence C. Ecoff and Alberto J. Campain for Plaintiff and Respondent

.

____________________________2 Defendants and a ppellant s Xiaogang Feng a nd Fan Xu (collectively, defendants) challenge the trial court’s grant of

a permanent injunction requiring them to remove a concrete
deck that extends from the back of their home and en croaches

on the property of their neighbor, plaintiff and respondent
Farzin Nassir

. Defendants contend that the trial court erred ( 1 ) in failing to find that plaintif f ’s claims were barred by laches ; and ( 2 ) in re fusing to grant defendants an equitable easement

to allow them to keep the deck

. We disagree and affirm.

FACTS AND PROCEEDINGS BELOW

Plaintiff and defendant s own adjoining properties in
the M ount Olympus neighborhood in the Hollywood Hills in
Los Angeles

. P laintif

f ’s “Hercules” property , which he has owned since 2000, is located downhill from the defendants ’ “Achilles”
property
, 1 which they purchased in April 2014. A concrete deck originates in the backyard of the Achilles property and extends
about 14 feet over the property line and into the back of the Hercules property. The deck is approximately 10 feet tall

, made
of solid concrete , and a metal fence surround s the base of the

structure

. Plaintiff discovered that the deck encroached on his
property as a result of a topographic survey performed on or around Sept ember 6, 2012. P laintiff initiated the survey as a result of separate, unrelated litigation against a previous owner of the Achilles property

. D efendants p urchased the Achilles property in April 2014 for $5 million

. Feng testified that the scenic view from the

1 The properties are so named because they are located on Hercules Drive and Achilles Drive, respectively.3

encroach ing deck was a principal reason for buying the house.
At the time of purchas e , the seller provided defendants with
disclosures on a standard questionnaire form

. I n response to

a question on whether there were any “[r]eports,

. . . studies, surveys or other documents pertaining to ” ( 1 ) “ the condition or repair of the [p]roperty

. . . or ” ( 2 ) “ easements, encroachments

or boundary disputes,” the seller disclosed that a “lot survey” of the property existed , but did not specify that it would show any encroachments or disputes

. The record does not contain the lot

survey

. D efendants did not obtain a copy of the survey , nor did they take any other steps to ascertain the legality of the deck

. On October 8, 2015, plaintiff filed suit, alleging causes
of action for trespass and declaratory relief, and requested preliminary and permanent injunctions. Defendants filed a

cross

- complaint alleging causes of action for quiet title, and declaratory relief for prescriptive and equitable easements. In August 2017, two years into the current case, plaintiff
contacted the Los Angeles Department of Building and Safety (LADBS) to re port the encroaching deck. A n LADBS inspector found that the deck had been built without permits and issued

an order requiring plaintiff to obtain the needed permits

. When plaintiff failed to comply, LADBS issued a fine for noncompliance
with a new date for correction. According to the inspector, if a property owner does not comply at this stage, the department
would ordinari ly transfer the case to the c ity a ttorney for legal
action , including potential criminal charges for noncompliance

. In this case, however, LADBS is awaiting the outcome of th e litigation before moving forward. After a bench trial, the court issued a statement of decision finding in favor of plaintiff on all of its causes of action and4

denying defendants an easement

. Th e court entered judgment

on January 29, 2020 grant ing a permanent injunction requiring defendants to remove the deck at their expense

.

DISCUSSION

A. Laches Defendants contend that the trial court erred by failing to
find that laches barred plaintif f ’s clai m for injunctive relief . We disagree. An injunction is an equitable remedy to which the doctrine of laches applies. ( See Committee to Save the Beverly Highlands
Homes Ass n. v. Beverly Highlands Homes Assn

. (2001) 92 Cal.App.4th 1247, 1266.) Laches bars equitable relief to a plaintiff who has waited an unreasonable time to seek relief when the delay is prejudicial to the defendant. ( Columbia Engineering Co. v. Joiner (1965) 231 Cal.App.2d 837, 856−857 ; see also Danjaq LLC v. Sony Corp (9th Ci r. 2001) 263 F.3d 942,

951. ) In general, “ ‘ the existence of laches is a question of fact to
be determined by the trial court in light of all of the applicable circumstances, ’ ” which we review for substantial evidence. ( Truck Ins. Exch. v. Workers ’ Comp. Appeals Bd. (2016) 2 Cal.App.5th 394, 402 .) But, w here the relevant facts are undisputed, w e determine whether laches applies as a matter of law. ( Bakersfield Elementary Teac hers Assn. v. Bakersfield City School Dist. (2006) 145 Cal.App.4th 1260, 1274 .) The doctrine requires ( 1 ) delay in asserting a right or
claim ( 2 ) which was not reasonable or excusable and ( 3 ) which has prejudiced the defendant. ( Magic Kitchen LLC v. Good Things Internat

., Ltd. (2007) 153 Cal.App.4th 1144, 1157 ( Magic
Kitchen )

. ) “The party asserting laches bears the burden of5

production and proof on each element of the defense.” ( Highland Springs Conference & Training Center v. City of Banning (2016) 244 Cal.App.4th 267, 282. )
D elay in asserting a claim is typically measured against the relevant statute of limitations for the action. If the plaintif f ’s claim “ is filed within the analogous state limitations period

. . . the strong presumption is that laches is inapplicable. ” ( Magic Kitchen

, supra , 153 Cal.App.4th at p. 1157 .) This presumption may be overcome in exceptional circumstances. (See, e.g., Holt v. County of Monterey (1982) 128 Cal.App.3d 797 ( Holt ).) The requirements of unreasonability and prejudice are “interrelated.” ( In re Marriage of Modnick (1983) 33 Cal.3d 897, 908 .) Generally, a delay is unreasonable when it results
in prejudice ( see Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1159 ) , and “ ‘the great er the prejudice, the

more timely must be the relief sought.’ ” ( In re Marriage of
Modnick

, supra , 33 Cal.3d at p. 908

. ) To demonstrate prejudice,
the claimant can show that she “took actions or suffered consequences that [she] would not have, had the plaintiff brought suit promptly.” ( Danjaq LLC v. Sony Corp

. , supra , 263 F.3d at

p. 955. ) In this case, p laintiff learned of the encroaching deck
around S eptember 2012 and filed suit against defendants three years later, on October 8, 2015. Thus, plaintiff filed suit within
the five

- year statute of limitations for an action for the recovery of real property 2 ( s ee Code Civ. Proc., § 318)

, and defendants

2 Defendants do not claim that the statute of limitations began running at an earlier date when plaintiff should have6

mu st overcome a “strong presumption” against the application
of laches. ( Magic Kitchen

, supra , 153 Cal.App.4th at p. 1157 .)
Holt

, supra , 128 Cal.App.3d 797 provides an example of the circumstances required to overcome this presumption. In Holt

, the real party in interest submitted a proposal in 1975 to develop a condominium complex. ( Id. at p. 799.) The county board of supervisors approved the plan in 1977 and granted the developer a use permit in 1979. ( Id. at pp. 799

– 800.) A few months later, the plaintiff filed suit , alleging that because the county had failed

to submit a valid general plan for development of county land, the specific plan for the development of the condominium complex, which was required to conform to the general plan, was
invalid. ( Id. at p. 800.) The court held that laches barr ed the
claim. ( See i d. at pp. 801

– 802.) Although the plaintiff had acted
within the relevant lim itations periods for challenging the validity of a use permit or a tentative subdivision plan, the court nevertheless held that he had unreasonably delayed bringing suit, to the prejudice of the developer. ( Ibid. ) T he plaintiff knew about the developer’s plans as early as 1976, yet he waited two and a half years before making his claim, during which time the developer spent more than $4 million in justifiable reliance on the validity of its plan. ( Id. at p. 801.)
Defendants claim that they are similarly positioned to the developer in Holt . They note that they purchased the property during the t hree

- year window between the time plaintiff
discovered the encroachment and when he finally filed suit.
If he had acted sooner, they would have known th at the deck

was illegal and would not have purchased the property. Thus,

become aware of the encroachment , and we therefore do not consider this possibility

.7

they contend that plaintif f ’s delay in filing suit unreasonably prejudiced them

. We are not persuaded . Key to the court’s decision in
Holt is that the plaintiff knew of the potential prejudice to the
defendant and allowed it to grow greater for two years before finally challenging the validity of the permits. (See Holt

, supra , 128 Cal.App.3d at p. 801.) In this case, by contrast, there is

no evidence that plaintiff knew that defendants intended to purchase the property. Ad d itio nally, in Holt , the developer
had good reason to believe that its permits were valid and acted
in justifiable reliance on that belief. Here, defendants simply
failed to investigate the property boundaries , which had they
done would have disclosed the encroachment. Under these circumstances, the trial court did not err by denying defendants’
claim of laches.

B. Equitable Easement

Defendants next claim that the court erred in denying them an equitable e a sement. We disagree.
In cases involving adjacent property owners where a party h as encroached upon the neighbor’s property, the neighbor
“is generally entitled to a mandatory injunction requiring the
defendant to remove the encroachment.” ( Nellie Gail Ranch
Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1003. )
I n exceptional case s , however, the trial court may deny an injunction and inste ad grant an equitable easement in favor
of the encroacher. Christensen v. Tucker (1952) 114 Cal.App.2d

554

, the classic authority on this issue

, s ets out the three requirements that a n encroacher must establish to obtain

an equitable easement. First, she must be innocent, i.e.,
the encroachment must not be the result of a willful act or8

negligence. Second, the granting of the easement must not

cause irreparable injury to the other party

. Third, the hardship
to the encroach er from granting the injunction must be greatly disproportionate to the harm an easement would impose on the other party

. ( Id. at p. 562 ; s ee also Hirshfield v. Schwartz (2001) 91 Cal.App.4th 7 49 , 769. )
We defer to the trial court’s factual findings so lo ng as they are supported by substantial evidence. (See Hirshfield v.
Schwartz

, supra , 91 Cal.App.4th at p. 772 .) We review the trial court’s application of the equitable easement doctrine for abuse
of discretion. ( Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19

. ) Under this standard, we will not disturb the court ’ s decision “as long as there exists ‘a reasonable

. . . justification, under the law,
for the action taken .’ ” ( Gonzales v. Nork (1978) 20 Cal.3d 500, 507.)
Here

, the defendants failed to meet the third requirement of demonstrating a disproportionate hardship from the enforcement of an injunction. Because this factor alone i s sufficient to justify the trial court’s decision, we need not consider
whether defendants were innocent, 3 or whether the grant of an
easement would cause an irr eparable injury to plaintiff

.

3 Although we need not decide the innocence issue , w e note that b efore purchasing the property, the seller gave defendants a standard disclosure form where, in respon se to a question about whether there were any “[r]eports, .

. . studies, surveys or other documents pertaining to” (1) “the condition or repair of the [p]roperty

. . . or” (2) “easements, encroachments or boundary disputes,” the seller answered “yes,” and noted that a “lot survey” of the prop erty existed. Yet defendants failed to obtain a copy of the survey or investigate further.9 At trial, d efendants identified two hardships that they
would suffer if the court granted plaintif f ’s injunction : They would have to pay to remov e the deck, and the y would lose
the scenic view from the deck, thus diminishing the value of
their property. Defendants’ expert on valuation testified that
the loss of the deck would reduce the value of the property by approximately $190,000

. 4 As to the cost of removal, the trial

court found that defendants had failed to produce an y competent
evidence. Defendants do not dispute this finding. The trial court identified three hardship s to plaintiff if defendants obtained an equitable easement

. First, plaintiff would permanently lose access to the 338 square feet of his land

on which the deck sits

. P laintif f ’s expert estimated the value
of this land at $150 per square foot, or $50,700 in aggregate.
D ef endants do not dispute the accuracy of this estimate

. Also, plaintiff has suffered los s of privacy by virtue of the encroaching
deck , from which certain parts of plaintif f ’s home are visible

. The per square foot estimate, however, under values the hardship to plaintiff, as it does not take into account the impact
of the deck on p l aintif f ’s privacy, the aesthetics or the loss of
value of plaintif

f ’s property. The remaining hardship to plaintiff is more difficult to quantify but no less real. According to LADBS, plaintiff could face criminal liability if the deck is not removed. Defendants
contend that t he possibility of c rimin al prosecution is not a
real hardship because plaintiff could not be criminally liable for

a deck he did not build or maintain

. We disagree. Regardless
of whether plaintiff would ultimately be vindicate d

, the mere

4 This is 3.8 percent of the $5,000,000 defendants paid for the property.10

possibility of criminal prosecution is a hardship to plaintiff

. 5
F or an equitable easement to be appropriate, the defendants

must show that they “ will suffer a greatly disproportionate hardship from denial of the easement than the presumptively heavy hardship the owner will suffer from its grant. ” ( Shoen v.
Zacarias

, supra , 237 Cal.App.4th at p. 20 .)
The trial court’s conclusion that the balance of hardships favored plaintiff was reasonable; thus, the court did not abuse
its discretion by granting the injunction

. Although the hardship s
to defendants in removing the deck are meaningful, they do not outweigh the detriment to plaintiff from allowing the deck to remain in place.

5 Defendants claim that the doctrine of unclean hands should preclude plaintiff from claim ing hardships related to the possible LADBS prosecution because plaintiff brought about the threat of prosecution by reporting the potential violation to the LADBS. Unclean hands is an equitable doctrine that prevents

a party from asserting a right if he engaged in inequitable or bad faith conduct in acquiring the right

. ( See Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638.) Defendants claim that by reporting to LADBS the encroaching deck, plain tiff “self

- inflicted” this hardship. We are not persuaded. As the trial court noted, “[a]sking for [LADBS]
to determine whether a structure on one [ ’ ] s o [ w ] n property [complies with legal requirements] is not wrongful; it is lawful and should be encourage d.

. . . The damage to [p]laintiff was caused by the illegal structure, regardless who reported it.”11 DISPOSITION

The trial court ’s judgment is affirmed. Nassir is awarded
his costs on appeal

. NOT TO BE PUBLISHED

.

ROTHSCHILD, P. J.
We concur :

CHANEY , J.

CRANDALL , J. *

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.